### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 11

- 51121 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JUAN CARLOS FUENTES

- ULLOA , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:10

- CR

- 1385

- 1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges. PER CURIAM: * Juan Carlos F uentes

- Ulloa challenges his guilty

- plea conviction for illegal reentry under 8 U.S.C. § 1326. For the first time on appeal, he contends his enhanced sentence under § 1326 (b)(2) (removal following aggravated

- felony conviction) must be vacated because his indictment failed to allege, and the Government failed to prove, his prior aggravated

- felony conviction. Fuentes maintain s, following Apprendi v. New Jersey , 530 U.S. 466 (2000), and Alleyne

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 30, 2013 Lyle W. Cayce Clerk Case: 11-51121 Document: 00512484133 Page: 1 Date Filed: 12/30/2013No. 11

- 51121

v. United States , 133 S. Ct. 2151 (2013 ), his prior conviction, which increase d his maximum s entence from two to either 10 or 20 years , is a fact essential to the penalty and is theref ore an element of the offense. Because Fuentes rais es the issue for the first time on appeal, review is only for plain error. For reversible plain error, Fuentes must show a clear or obvious forfeited error that affected his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). Eve n if he shows such reversible plain error, we have the discretion to correct the error, but should do so only if it seriously affects the fairness, integrity, or public reputation of the proceedings. See id. Fuentes fails, however, to show any error. In Apprendi , the Court held: “ O ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury , and proved beyond a reasonable doubt”

. 530 U.S. at 490

. Because it created an exception for prior convictions, Apprendi did not overrule Almend ar ez - Torres v. United States , which held § 1326(b)(2) was a sentencing factor , rather than an element of the offense , and, thus, need not be alleged in the indictment. Id. at 489

- 90 ; Almendarez

- Torres , 523 U.S. 224, 226

- 27 (1998) . “This court has patiently entertained the identical argument in countless cases

. . . . [ however, b ]ecause the Supreme Court treats Almendarez

- Torres as binding precedent, [Fuentes ’] argument i s fully foreclosed from further debate ”. United States v. Pineda

- Arrellano , 492 F.3d 624, 625 (5th Cir. 2007). In Alleyne , the Supreme Court extended Apprendi ’s reasoning to statu tory minimum sentences, holding: “F acts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt”. Alleyne , 133 S. Ct. at 215 8

. The

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- 51121
Supreme Court specifically noted, however, that its decision did not revisit the Almendarez

- Torres exception. Id . at 2160 n.1. AFFIRMED.

3 Case: 11-51121 Document: 00512484133 Page: 3 Date Filed: 12/30/2013